United States District Court, E.D. California
BENJAMIN K. TOSCANO, Plaintiff,
SCOTT KERNAN, Defendant.
ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (ECF No. 32)
ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g)
ORDER FOR CLERK TO CLOSE CASE
September 23, 2016, Benjamin K. Toscano
(“Plaintiff”) a state prisoner proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
December 28, 2016, the Court issued a screening order,
dismissing Plaintiff's complaint for failure to state a
claim with leave to amend. (ECF No. 22.) The Court explained
that Plaintiff failed to raise a valid constitutional
challenge to a specific policy or regulation and did not
attempt to explain why any such program or policy was
unconstitutional. Plaintiff indicated in his original
complaint that his current custody status is unsafe, but
failed to name individuals or give specific details regarding
deliberate indifference to Plaintiff's safety. The Court
noted that relevant legal analysis for an Eighth Amendment
claim requires Plaintiff to name specific individuals and
describe how they were deliberately indifferent to his
filed his Second Amended Complaint (“SAC”) on
March 16, 2017 (ECF No. 32.). Plaintiff generally challenges
regulations regarding security threat groups, implemented in
2012, which purports to “monitor affiliates and assist
with transition for return to a general population
setting.” Plaintiff previously was confined to the
Security Housing Unit (“SHU”), but since the
passage of 15 U.S.C. § 3378.3, he has been transferred
to a different housing unit. Plaintiff appears to wish to be
in the SHU indefinitely.
(ECF No. 32) is now before the Court for screening pursuant
to 28 U.S.C. § 1915A. For the following reasons, the
Court dismisses the action with prejudice for failure to
state a claim.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that the
action or appeal fails to state a claim upon which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
complaint is required to contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). While a plaintiff's allegations are
taken as true, courts “are not required to indulge
unwarranted inferences.” Doe I v. Wal-Mart Stores,
Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal
quotation marks and citation omitted). Plaintiff must set
forth “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678. The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. While factual allegations
are accepted as true, legal conclusions are not. Id.
The mere possibility of misconduct falls short of meeting
this plausibility standard. Id.
PLAINTIFF'S SECOND AMENDED COMPLAINT
Plaintiff's General Allegations
Plaintiff's second amended complaint, he names Scott
Kernan, Director of CDC and M. Lujan, Correctional Lieutenant
as defendants. Plaintiff requests relief in the form of a
declaratory judgment finding that he is in imminent danger
and injunctive relief directing the CDCR Director to abandon
the STG/SDP programs and remove it from the Title 15, to be
returned to non-disciplinary segregation (SHU), criminal and
federal investigations, compensatory, punitive and nominal
damages, a trial by jury, to be transferred to Corcoran State
Prison or New Folsom State Prison SHU, and to have his
request for out-of-state transfer to Las Vegas State Prison
processed by Defendants. (ECF No. 32.)
states that his complaint challenges Title 15 § 3378.3,
a California law regarding the Security Threat Group
(STG)/Step Down Program (SDP), which California Department of
Corrections (CDC) implemented on October 18, 2012. This
regulation affords validated inmates housed in the SHU a way
to transfer from SHU back to the General Population (GP).
alleges that on January 26, 2016, the United States Northern
District Court approved the preliminary agreement in the
Ashker v. Governor of the State of California case,
in which inmates can no longer be validated (by which he
presumably means validated as gang members subject to SHU).
Because inmates can no longer be validated indefinitely,
Plaintiff alleges that the SDP is obsolete and should be
removed from the California regulations.
alleges that the Departmental Review Board (DRB) did not meet
regarding Plaintiff until after the complaint was filed.
After the complaint was filed, the DRB met and ultimately
sent Plaintiff to the restricted custody general population
(RCGP) modified ...